Class began with a brief connection between the music and the fate of our soldiers wounded in Iraq.

1st Assignment

If you are not going to be away on moot court next week:

• 1000 word essay due by close of business Thursday via the Wiki.
• If you want to write privately, follow the instructions placed by the prof. on the Wiki homepage. Otherwise, simply produce a topic page/statement, titled as you please, and linked from your Wiki user page.
• Paper is worth about 20% of your final Grade. The second paper will be worth about 30% and the final around 50%.
• You don’t have to write a paper on any particular topic. If you need a starting point, write a 1000 word on one purpose of the criminal trial other than fact finding.
• The key is original thinking about the an idea and its consequences.
• Using the Wiki during the editing process will allow for both enhanced writing you our part and easier dialogue with Eben during later editing.

Class Notes:

Learning how to collaborate in law school (particularly when it is done better than how it is done at large firms) will enable you to create small practices at a fraction of the cost.

Holmes: History and logic together have been used to elucidate the fabric of the law. Logic is mostly a cheat – a form of imposition. History, while valuable in understanding the psychological structures and needs of the time, is a poor guide to the actual meaning of legal principles. It does not significantly aid in predicting future behavior or the outcomes of lawsuits.

Future students of law, if they understand that things are what they do, will attend to statistics and economics to create a theory of law based on the factual relations of the interventions of the public force in society to the policy questions that the judges are chasing. The more transparency on the part of the judiciary, the better lawyers will be able to predict what is going to go on.

Cohn and Frank (students of Holmes) take his ideas and expound upon them.

Cohn: The law can’t be treated as a formal system.

• If you understand math and the contribution of the social sciences to the law, you will be weary of the rules as a basis for prediction or as a basis for judgment.
• Rule-skeptic version of realism

Frank:

• Like Cohn - a product of the opening of the federal government to Jews
• Founded clinical legal education at YLS and then sat on 2nd Circuit
• Fact-skeptic version of realism: We can’t create consensus-based facts that could be imputed into a predictive model.
• Highlights the inability to know “what the facts were below.”

If we can look at the law as an art (as Frank seems to state), what makes it artful?

• Perhaps that it works?
• Perhaps the point of art is to shape the world?
• Perhaps law is the art of getting something done?

“The Lives of Others” – Movie recommendation

Arnold:

• Takes the thinking of Holmes and applies it to politics
• “Fair fights and foul” – his memoir
• Ally of FDR

Cultural phenomenon hold organizations together.

• First step is to identify itself and an other. To distinguish itself from others, organizations create big, internally contradictory symbolic structures (creeds).
• The real purpose of creeds is to hold people together to something that doesn’t make any sense so that as many people as possible can jam into the tent
• Creeds have to be meaningless in order to cohere (otherwise they would divide)

Habits

• Unconscious practices of mind that enable organizational existence (doing without knowing)
• If you cease to be able to do without knowing, you cease to be an organization (imagine if NY had to figure out how to get food into the city and waste out of it every day ... we would either starve or drown in our own filth)
• Understanding the habits of an organization will empower you to successfully navigate it or tinker with it to your advantage

-- AdamCarlis - 07 Feb 2008